Between the Ceiling and the Floor: Making the Case for Required Disclosure of High-Low Agreements to Juries

33 Pages Posted: 1 Oct 2016

See all articles by Richard Jolly

Richard Jolly

New York University (NYU), School of Law - Civil Jury Project

Date Written: April 29, 2015

Abstract

Parties are increasingly using high-low agreements to limit the risks of litigation. High-low agreements are contracts in which defendants agree to pay plaintiffs a minimum recovery in return for plaintiffs’ agreement not to execute on a jury award above a maximum amount. Currently no jurisdiction requires high-low agreements to be disclosed to the jury. This Note argues that disclosure should be required. It contends that non-disclosed high-low agreements are a type of procedu- ral contract modifying the jury’s core adjudicative function. Drawing on theories of procedural justice, it suggests that by usurping the jury’s role these agreements un- dermine the legitimacy of the judicial system. It contends that requiring disclosure would remedy these negative effects and that any unintended consequences attend- ant to disclosure could be mitigated by the court or by the parties.

Keywords: Jury, Juries, High-Low Agreement, Custom Procedure, Civil Procedure

Suggested Citation

Jolly, Richard, Between the Ceiling and the Floor: Making the Case for Required Disclosure of High-Low Agreements to Juries (April 29, 2015). 48 U. Mich. J.L. Reform. 813 (Spring 2015). Available at SSRN: https://ssrn.com/abstract=2840259

Richard Jolly (Contact Author)

New York University (NYU), School of Law - Civil Jury Project ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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